TOP TIP: Winter Is Coming… What Are the Rules on Pay for Weather-Related Business Closures?

With the onset of winter, many employers anticipate some snow-related closures. A business may decide to remain closed for the whole day, or perhaps shut down early. How does this impact an employee’s pay? Let’s take a look at some different circumstances.

 When the business is closed – non-exempt employees. Under the federal Fair Labor Standards Act (FLSA), non-exempt employees are only paid for hours actually worked. Thus, non-exempt employees who are not required to report to work do not get paid. If a non-exempt employee is sent home early, they must be paid only for the hours worked that day. Employers may, but are not required, to allow non-exempt employees to use paid leave, such as vacation or paid time off, to cover the scheduled but unworked time.

A caveat – some states have “reporting time” pay laws that require employers to pay non-exempt employees who show up at work only to be sent home. These laws typically require payment for a certain minimum number of hours, even if the employee does not end up working those hours. Similarly, state and local predictable scheduling laws may impose certain pay obligations on employers who change employees’ work schedules without sufficient notice – although such laws may contain exceptions for acts of God or acts of nature, which may include weather-related events. It is important to be aware of and compliant with such laws.

 When the business is closed – exempt employees. The FLSA generally does not permit deductions from the pay of exempt employees for weather-related closures of less than a full week, and even in such circumstances, the employee may not perform any work during that week. An employer may require exempt employees to use vacation or paid time off to cover any weather-related closures. If the employee does not have sufficient paid leave to cover the missed time due to the closure, however, the employer must still pay the employee their full salary.

When the business is open – non-exempt employees. If the business remains open but the non-exempt employee chooses not to come to work for weather-related reasons, the employee is not paid. Again, an employer may choose to allow the non-exempt employee to use paid leave to cover the absence.

When the business is open – exempt employees. One of the exceptions to the no-deductions rule for exempt employees is if they take a full day off for personal reasons. Thus, if the business is open but the exempt employee chooses not to work that day, the employer may deduct the full day from the employee’s salary. The employer may instead require or allow the employee to use paid leave to cover the absence, in which case the employee still receives their full salary for the week.

But a word of warning – many exempt employees are able to check their work email from their cell phones. If an exempt employee chooses not to come in but performs any work from outside the office – including checking email – they must be paid. Again, they could be required to use paid leave for that day, but if they do not have paid leave available, they must receive their full salary nonetheless.

Non-exempt employees required to remain on the premises. But what if the employee is required to remain on the premises because of a weather emergency?

If this time period is less than 24 hours, all hours on the premises must be paid, even if the employee is sleeping or resting during part of that time.

There is a different rule if the employee is required to remain for more than 24 hours. The Department of Labor recognizes that up to 8 hours of non-working “sleep time” may be deducted from an employee’s hours under such circumstances, where there is an agreement to that effect.  The FLSA does not define what is such an “agreement.”  However, various courts have done so, and these courts have found that if an employer publishes a policy that explains the sleep time deduction and if employees continue to work for the employer, this constitutes an agreement for the deduction.

Employers may only deduct for sleep time if the employee is fully relieved of all work during that time and if adequate sleeping facilities are provided.  If the employee’s sleep period is interrupted because of work, the interruption is counted as hours worked.  If the interruptions are so frequent that the employee cannot get a reasonable night’s sleep, then that entire sleep period would be counted as hours worked.  According to the DOL, a reasonable night’s sleep means that the employee is able to get at least 5 hours of sleep during the scheduled sleep period. These five hours need not be continuous uninterrupted hours of sleep.

In addition, only the actual number of hours spent sleeping, up to a maximum of 8 hours, is deducted.  If the sleep time is more than 8 hours, no more than 8 hours can be deducted.  Obviously, this means that each incidence of sleep time would need to be assessed individually.

Additional pay for exempt employees required to remain on the premises? If an exempt employee remains on the premises and works more than their usual hours, there is no obligation under the FLSA to pay them any additional compensation for the extra work. However, an employer can choose to pay a bonus or other additional compensation – even compensation calculated based on the additional hours worked – in addition to their normal salary without jeopardizing the employee’s exempt status.